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The arrest followed months of legal wrangling over the legality of Epstein’s non-prosecution agreement struck with then-US attorney and current Secretary of Labor Alexander Acosta back in 2007 that reduced his punishment for solicitation of prostitution and procurement of minors for prostitution — charges that could have landed him in prison for decades — to just 13 months in a private wing of a Palm Beach jail (which he was
permitted to leave six days a week for 12 hours a day to work from an office).
“The victims of this case were completely and intentionally cut out of the process,” said Berit Berger, executive director for the Center for the Advancement of Public Integrity at Columbia Law School.
The deal also ended an FBI investigation into what one detective called a “sexual pyramid scheme,” as detailed in the
indictment, in which Epstein would pay some victims to procure more underage girls for him, details largely exposed to the public in November 2018 by
Miami Herald reporter Julie K. Brown.
As my colleague Anna North and I have previously written, the story of how Epstein got such a light sentence — and who was involved — is a master class in the power dynamics that have been exposed by the
#MeToo movement. Now federal prosecutors in New York are trying to alter that story, acting, in Berger’s words, “as the protectors of these victims.”
I spoke with Berger, who’s also a former federal prosecutor in the Southern and Eastern Districts of New York and
has written on the Epstein case previously, on Monday afternoon about the government’s case for denying Epstein bail and what comes next. This interview has been edited for length and clarity.
Jane Coaston
Where do we stand right now with Epstein’s case?
Berit Berger
[On Monday,] the government put in what’s called a
detention letter, which sets forth their position about why Epstein should be detained prior to trial. In the next few days, Epstein’s lawyers will have the opportunity to come up with what’s called a bail package — they’ll present this to the judge saying if you release him on this kind of a bond, this will ensure that he’ll come back to court. And usually when defense attorneys do that, it’s a package that would be secured by property signed by people that have a connection to the defendant. Although in this case, because it’s a defendant of so much means, it would have to be extraordinarily high as far as the amount of money.
Jane Coaston
Something that
you’ve written on previously is the degree to which the deal Epstein initially received from Acosta, the non-prosecution agreement, was extremely advantageous to Epstein and disadvantageous to his alleged victims. Can you tell me about that non-prosecution agreement, how that was set up, and why it was so bad for the people who wanted to be able to speak out about what happened Epstein allegedly did?
Berit Berger
It’s bad for a few reasons. The indictments that we saw today make pretty obvious [that] to get a non-prosecution agreement for crimes involving sex trafficking of minors is incredibly rare. Most offices, including the office that I have previously worked in, would be very reticent to give somebody a non-prosecution agreement if we had proof that they had engaged in sex trafficking, especially sex trafficking of a minor. This is one of the most serious categories of criminal offenses that somebody can commit, so the idea of letting somebody walk away from federal prosecution on charges like that is very surprising. For that reason, it always struck me as incredibly odd that they gave him a non-prosecution agreement.
The second part of why it was so surprising is that the victims of this case were completely and intentionally cut out of the process. This wasn’t something that was inadvertent, it wasn’t something [where] the prosecutors just forgot to call the victims’ lawyers — this was them really intentionally making an effort to keep them out of the process, which is not only contrary to responsibilities of the prosecutors and the standard set out in the US Attorneys’ Manual, but it raises a lot of red flags about why they felt it was appropriate to act in that way.
And just to follow up on that, in the press conference today you heard the US attorney for Southern District, Geoffrey Berman, coming out pretty firmly saying — I’m going to butcher his exact language here, but — “This is a case that we’re bringing to support these victims; we are opening the phone lines up to other potential victims.” He’s encouraging other victims to call in. They are setting themselves apart in a pretty obvious way from how things were handled in Florida, saying not only are we going to do the bare minimum of what we’re required to do for the victims, but we are very much seeing ourselves as the protectors of these victims.
Jane Coaston
Something that a lot of people are concerned about right now is that even if [Epstein] turned in his passport, he may be still a flight risk. How will, in your view, the court determine whether or not that risk is real, and how likely is it for him to be denied bail?
Berit Berger
Look, it’s hard to predict what the judge is going to do, but the government, I think, makes a very compelling case for why he should be detained. As they
set forth in their letter, this is somebody that really is above and beyond what we can even imagine as far as wealth goes. If he wanted to flee from this prosecution, he would have the means to do it [and] he would have ties to foreign countries that [would enable] him to do it in a way that would be very difficult for the US government to monitor.
But it’s also things like the strength of the government’s case, which is another factor that the judge can consider. Here you have a defendant who’s facing potentially decades in prison on what the US Attorney’s Office considers really strong charges supported by multiple different witnesses. So that all adds up to a strong flight risk, which the court will certainly consider.
I think what could be the final nail in the coffin for him on the bail question is the fact that when he was arrested, they executed a search warrant of his New York City townhouse. [And] they found these images, what we call child exploitation images or child pornography, in his apartment. If this can be connected to Epstein, this is terrible for him.
He is a registered sex offender now, and he is continuing to engage in this exploitative conduct. He’s continuing to commit new crimes, continuing to commit crimes involving minors. I won’t be surprised if the judge decides to keep Mr. Epstein in jail.
Jane Coaston
That raises a really interesting point, because part of the original deal that he received [in 2008] was that he served just 13 months, [and] not in federal or state prison but in a private wing of a jail in Palm Beach where he was allowed to go to an office 12 hours a day, six days a week. Can you tell a little bit more about how that element of recidivism will play into the judge’s ultimate determination?
Berit Berger
If somebody has been convicted of a crime, you would hope that they have, in a sense, learned their lesson, changed their ways, become an upstanding member of the community. Here, assuming that what the FBI found is in fact child pornography and in fact can be connected to Epstein, you have the exact opposite. You have somebody that kind of bolsters the government’s argument that the sentence he received did nothing to deter Epstein from continuing to commit offenses and did nothing to set him on a path of not being a criminal. So I think that’s how the idea of recidivism will play into a bail determination: The government is able to say a 13-month state sentence where he got to leave six days of the week was just not sufficient. It wasn’t enough to deter him from continuing to commit criminal conduct.
Jane Coaston
How do you think the government will include or attempt to include victims as this prosecution moves forward?
Berit Berger
This is something that the government deals with very frequently, [so] there are systems in place for how victims are notified. In a case like this where there are dozens and dozens of victims, there will probably be one or two people within the US Attorney’s Office that are responsible for, on the smallest level, making sure the victims know every time there’s a court appearance. Anytime something gets scheduled, the victims will get notified so that they can show up if they want. This is not something that’s special to the Southern District of New York — there are laws and regulations and policies that set forth what is supposed to happen in a case that involves victims, so victims have an opportunity to speak at certain proceedings in a criminal case.
The government has the obligation to consult with the victims if they’re considering offering a defendant a certain plea deal. That doesn’t mean that the victims get to call the shots, that they necessarily get to be the final decision-maker, but they do have the right to be consulted. And that’s something [that] was not done in the Florida case.
My guess is that [the Southern District] will, especially given what happened in the Florida case, really go above and beyond to make sure that these victims are included and that their views are considered. That’s what they should do.
